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Scenario 1: You live in a community which has embraced local foods. There is a health food co-op, active farmers market and more. So you decide to raise animals at your home. It is your property, so you believe you have right to farm protection. But you are confronted with opposition and local government regulation that may not be so accommodating.

Scenario 2: You live in the same community. But you chose to live in a dense residential area so you are not near animals and the annoyance of their smell, noise and maybe to protect yourself because you are highly allergic to them. It is your property; you believe you have the right not to have such nuisances near you. But along comes a small farmer that moves next door to you.

Under old common law, a person has legal recourse to protect themselves from a nuisance. And one of the principles is that if you are there first, and the nuisance comes, you may prevail. But if the activity that might be thought of as a nuisance is there first, and someone moves to it – one does not get the same protection.

In Michigan, the RTFA (MCL 286.471 et seq.) became statute designed to protect farms from nuisance claims. It is a codification of the principle that farm gets protection from suits from those who move out to the farm country. It protects farms even if they change their operation, enlarge it, and more. New farms, if they follow GAAMPs, also receive this protection. The RTFA was amended to severely restrict local government from regulating farms. The act reads:

“any local ordinance, regulation, or resolution that purports to extend or revise in any manner the provisions of this [Right to Farm] act or generally accepted agricultural and management practices developed under this act. Except as otherwise provided in this section, a local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or generally accepted agricultural and management practices developed under this act.” (Brackets added, MCL 286.474(6))

There has been a lot of litigation about preemption of local regulation, with some judges and magistrates ruling that zoning could not even prevent farming in established neighborhoods, in cities, villages or urban-like townships. This is unsettled law, which has not been definitively resolved.

Remember our two scenarios with our two individuals: one who wants to farm anywhere, and the second who chooses a residential area specifically to avoid living near farms? While this is an over-simplification of all the issues, that is the problem confronting the Michigan Commission of Agriculture and Rural Development and the basis for their adoption of the 2014 update of the Generally Accepted Agricultural and Management Practices for Site Selection and Odor Control for New and Expanding Livestock Facilities (Site Selection GAAMP) on April 28, 2014.

Part of the foundation of the Commission’s decision is that there is not a single state-wide solution to balancing the two differing interests in the two scenarios. So, a major part of the change is to empower local government to be able to accommodate such small farms. It is a response to the growing interest in urban agriculture, and the Commission’s attempt to balance concerns in residential areas where all livestock may not be appropriate. A possible result of the change to the Site Selection GAAMP may be allowing community involvement in deciding if livestock, with or without certain conditions, is appropriate in urban locations while providing continued opportunity for people to be closer to local food sources. In other words, these issues may best be addressed locally. It is hoped there will be win-win solutions that come from this. One can expect different communities will make different decisions as a result:

There will be some local governments that will still want to say “no” to any animal farm operations in primarily residential areas.

There will be some local governments that will be welcoming to discussion and consensus-building to accommodate animal farm operations in all or some primarily residential areas.

There are local governments that have not been receptive to animal farm operations in dense residential locations but may feel far more comfortable after these changes and be more open to farm operations in primarily residential areas. This is because they now have ability to have some control to implement a local consensus without preemption by RTFA.

There are some local governments that already allow limited animal farm operations in urban areas, but did so with the risk they may not have been able to really control issues of local importance. This change helps those communities be on surer legal footing.

The change to the Site Selection GAAMP added a fourth category for livestock facilities. Category 1 sites are locations which are very rural and the neighborhood is almost all agricultural. These are locations where very large animal operations can locate. Category 2 sites have more non-farm residences in the rural neighborhood. So additional practices, technologies and management practices are appropriate for animal operations are needed based on the Site Selection GAAMP. Category 3 sites are locations which are not generally good for animal operations because of environmental issues or many non-farm neighboring land uses.

The new Category 4 sites are locations which are not acceptable for new or expanding animal operations (livestock facilities and livestock production facilities) based on the Site Selection GAAMP. But can still be done if a local government ordinance provides for it. Category 4 sites are locations which are:

“primarily residential”, that is “there are more than 13 non-farm residences within 1/8 mile of the site or have any non-farm residence within 250 feet,” and

Zoning does not allow agricultural uses in that zoning district. (Conversely, if zoning identifies an agricultural use or a mixed use that includes agricultural use in the zoning district it could potentially not be a category 4 site.)

In other words, small (less than 50 animal units) livestock facilities in “primarily residential” locations are not banned from those locations, rather the decision as to if it is an appropriate location is shifted from the state, with GAAMPs, to the local government to determine. (An animal unit is the number of animals which are equivalent to one slaughter and feed cattle. Depending on the animal, 50 animal units are proportionate based on a number of factors. For example 50 animal units means 125 swine, 500 sheep and lambs, 25 horses, 2,700 turkeys, 5,000 laying hens or broilers.)